Virginia Lawyers Weekly VA Lawyers Weekly
Whether “black ice” at the entrance to a Hardee’s restaurant was open and obvious is in dispute, and a Roanoke U.S. District Court says weather data, testimony by plaintiff’s wife, the manager and another witness create a question for the jury.
It is well established that a business owner has no duty to remove ice during the time that moisture is falling and freezing on the ground. A business establishment may wait until the end of a storm and a reasonable time thereafter before removing ice and snow from an outdoor entrance, walk platform or steps.
Here, the court agrees with plaintiff that a genuine factual dispute exists with respect to whether the winter storm had ended at the time of his fall. Although plaintiff’s wife and a witness testified there was frozen precipitation falling at the time plaintiff attempted to enter the restaurant, reports from the National Climatic Data Center indicate the precipitation ended in Roanoke on the evening of Dec. 16, 2010, and that no precipitation fell on the day of the incident. Likewise, another witness testified that he did not recall seeing any rain or sleet when he traveled to the restaurant on the day in question. Because the court must construe the evidence in the light most favorable to plaintiff, the court is unable to conclude at this stage that defendant had no duty to employ reasonable efforts to remove ice and show from its entrance at the time of plaintiff’s fall.
The question of whether a dangerous condition was open and obvious is normally one for the jury to determine. Reasonable minds could differ as to whether the ice was an open and obvious danger that plaintiff should have observed and thus, that defendant is not entitled to summary judgment on this ground. Plaintiff’s wife described the substance near the door where plaintiff slipped as “black ice,” which courts have recognized is, by its very nature, not noticeable upon casual inspection. Also, the proximity of plaintiff’s fall to the restaurant cannot be ignored. The court is unable to conclude as a matter of law that the patch of ice was open and obvious to a reasonable person exercising ordinary care for his own safety.
The alleged patch of ice was located immediately outside the entrance to the restaurant, in an area in which customers would need to walk. A witness testified the ice appeared to have been packed down by customers and that it was in the same vicinity as an ice chipper. Although the manager on duty could not recall when she inspected the area during the three-hour period before plaintiff’s fall, she testified she was supposed to inspect the area “every hour.” The court concludes a reasonable juror could find that defendant’s employees were aware of the ice or that it existed for such a length of time they should have discovered it. Although defendant’s employees testified they shoveled and spread Ice Melt on the morning of plaintiff’s accident, plaintiff’s wife testified that he did not appear that the area in front of the entrance had been cleared at all.
Defendant’s motion for summary judgment denied.
Hudson v. Boddie-Noell Enters. Inc. (Conrad) No. 7:11cv00466, June 13, 2012; USDC at Roanoke, Va. VLW 012-340, 12 pp.
